IN THE LABOUR COURT OF SOUTH AFRICA
(HELD AT CAPE TOWN)
CASE NO: C 131/99
DATE: 2531999
In the matter between:
NATIONAL EDUCATION HEALTH AND Applicant
AND ALLIED WORKERS UNION
and
THE UNIVERSITY OF CAPE TOWN Respondent
JUDGMENT
BASSON, J:
[1] This is an application for urgent interim relief in terms of which the applicant, the
National Education Health and Allied Workers Union (“NEHAWU”) seeks an
order declaring that:
1. The recognition agreement entered into between the applicant and the respondent
on 6 March 1986 remains valid and in force;
2. Interdicting and restraining the respondent from evicting the applicant from its
office on the premises of the respondent;
3. Interdicting and restraining the respondent from preventing the applicant from
utilising facilities afforded to the applicant by the respondent in terms of the
recognition agreement; and in particular,
4. Interdicting and restraining the respondent from disconnecting the applicant’s
telephone, email and fax facilities.
5. Interdicting and restraining the respondent from redeploying and/or retrenching
fulltime shop stewards of the applicant.
[2] Further, in terms of an amended notice of motion, ordering that the provisions of
paragraphs 15 above operate as an interim interdict with immediate effect
pending the resolution of the dispute in terms of section 24 of the Labour
Relations Act 66 of 1995 (”the LRA”).
[3] The said recognition agreement was attached as Annexure B to the papers (at
pages 23 and further).
[4] Important in this regard is clause 2 of the recognition agreement which sets out the
objectives of the agreement as follows:
"The purpose of this agreement is to regulate the relationship between the
university (the respondent) and the union (the applicant) and in doing so, to strive
to establish an effective and cooperative working relationship between
them"(emphasis supplied).
[5] In giving effect to the cooperative working relationship, clause 9 of the agreement
deals with consultative meetings and states that:
"Monthly meetings shall take place between not more than 15 members of the
shop stewards' committee and an equal number of management representatives of
the university."
[6] Also of decisive importance is clause 3.1.3 of the agreement which states
that:
"The agreement shall commence on signature of this document and shall remain in
force for a period of one year, unless either the university or the union acts in
material breach of this agreement and the other party gives written notice of
termination to the defaulting party which shall take effect immediately upon
service of such notice in addition to whatever other remedies may be available to
the party at law"(emphasis supplied).
[7] A consultative meeting between the parties in terms of this recognition agreement
took place on 10 March 1999. It was common cause between the parties that
the following stance was taken by the applicant (and I quote from paragraph 5.1 of
the applicant's papers at page 8):
“5.1 The applicant's decision (is) not to participate in any university structure with
management until two dismissed shop stewards of the applicant are reinstated."
[8] This stance of the applicant is also borne out by the minutes of this consultative
meeting (attached to the papers).
[9] The requirements for granting urgent interim relief were set out in the case of
Ericsson Motors Limited v Protea Motors & Another , 1973(3) SA 684 (A) at
pages 691CF:
"The granting of an interim interdict pending an action is an extraordinary remedy
within the discretion of the Court where the right which it is sought to protect is
not clear. The Court's approach in the matter of an interim interdict was lucidly
laid down by Innes, JA in Setlogelo v Setlogelo , 1914 (AD) 221 at 227. In
general, the requisites are:
(a) a right, which though prima facie established, is open to some doubt;
(b) a wellgrounded apprehension of irreparable injury;
(c) the absence of an ordinary remedy."
In exercising its discretion, the Court weighs inter alia the prejudice to the
applicant if the interdict is withheld, against the prejudice to the respondent if it is
granted, this is sometimes called the 'balance of convenience'. The aforegoing
considerations are not individually decisive but are interrelated ...”.
[10] In the matter of Webster v Mitchell , 1947 (WLD) 11861189, the Court suggested
the following approach when considering the facts of an application of this
nature:
"The proper manner of approach I consider is to take the facts as set out by the
applicant, together with any facts set out by the respondent which the applicant
cannot dispute, and to consider whether having regard to the inherent
probabilities, the applicant could on those facts obtain final relief at a trial. The
facts set up in contradiction by the respondent should then be considered. If
serious doubt is thrown on the case of the applicant he could not succeed in
obtaining temporary relief, for his right, prima facie established, may only be open
to 'some doubt'."
[11] Having regard to the purpose of the recognition agreement in casu (quoted above)
and especially to the fact that its objective is to establish an effective and
cooperative working relationship between the applicant and the respondent, the
action of the applicant in declaring that it would not participate in any university
structure with management until two dismissed shop stewards were reinstated was
clearly a material breach of the provisions of clause 2 and clause 9 of the
recognition agreement which deal in particular with consultative meetings
between the parties.
[12] The applicant sought to remedy the breach of the contract in a letter to the
university (the respondent) at page 40 of the papers (Annexure C). It is to be
noted that the letter of termination in terms of clause 3.1.3 (referred to above), was
sent to the union on 15 March 1999, that is, five days after the breach had taken
place.
[13] The letter by the union (the applicant) retracts the breach of the agreement in the
following words, under the heading "Termination of Recognition Agreement"
following words, under the heading "Termination of Recognition Agreement"
(which words also clearly indicate that the fact that the university sought to
terminate the recognition agreement was made clear to the union at this stage) and
then proceeds as follows (at paragraph 2):
"1. We agree to retract to our demand for the reinstatement of the two dismissed shop
stewards and we commit ourselves to the CCMA arbitration process that is
hearing their case.
2. We restate our commitment to the recognition agreement and to working with
UCT on all matters of mutual interest, in particular we agree to continue
participating in future consultative meetings."
[14] This letter does not state (as the applicant's legal representative tried to argue) that
there was no wilful breach of the recognition agreement. It also does not state that
the persons representing the union at the meeting of 10 March 1999 did not have
the necessary mandate to state what they did (that is, that they refused to attend
any future consultative meetings). In fact, this letter made it clear that there was a
breach of the recognition agreement and that it consisted of a refusal to participate
in future consultative meetings.
[15] In the event, there was a material breach of the recognition agreement by the
union.
[16] The university acted in terms of clause 3.1.3 of the recognition agreement ( supra)
to terminate the agreement. Both parties had voluntarily agreed that such
termination would be possible in the event of a material breach. The other party
merely gives written notice of termination to the defaulting party and such
termination then takes effect immediately upon service of such notice.
[17] I am accordingly of the view that the recognition agreement was terminated by the
university (the respondent) in its letter of 15 March 1999.
[18] I am further of the view that the union, in using the recognition agreement as a
bargaining chip in another dispute (that is, the dispute concerning the dismissal of
the said members of the union), took the risk and placed itself in the position in
which it now finds itself, namely that the university would also exercise its rights
in terms of the recognition agreement, especially its right to terminate the
agreement in the event of a material breach thereof.
[19] I need not enter into any of the other alleged breaches of the recognition
agreement. It was argued in terms of the heads of argument handed up to
Court and also appeared from the papers that there was allegedly a breach also in
regard to a previous strike and that there was also an alleged breach in regard to
the use of one of the hall facilities of the university.
[20] The breach that I have referred to above clearly is material in that it would be
purposeless to carry on under the recognition agreement if one of the parties
refused to attend the required consultative meetings (see in this regard also the
case of Sibonyone & Others v University
of Fort Hare , 1985 (1) 19 SA (CKSC) at 32F33C.
[21] The respondent (the university) therefore acted lawfully in terminating the
recognition agreement and the applicant's (contractual) right is therefore open
to serious doubt. In other words, the applicant has failed to establish a prima
facie right.
[22] As far as the requirement of irreparable harm is concerned, (the second
requirement for the granting of urgent interim relief in the form of an interdict) it
is unclear why the infringement of rights of the shop stewards would amount to
irreparable harm as they have other remedies in terms of the LRA should they face
unfair dismissal, or (in terms of section 23) should they in separate proceedings
wish to attack the validity or the actions of the respondent in terms of the
recognition agreement.
[23] It also is not clear to me, and it is not necessary for me to decide in view of the
fact that the first factor is not present, that the rights which the union stands to
lose, although substantial, is such that it would cause irreparable harm.
[24] There is, of course, also another remedy available to the parties in the present
matter and that would be to refer any dispute about the recognition
agreement to the Commission for Conciliation Mediation and Arbitration (“the
CCMA”) in terms of section 24 of the LRA. This dispute was referred to
conciliation only yesterday (even though the letter of termination was already
received on 15 March 1999). Accordingly, also in this regard, I would, in normal
circumstances, be wary to exercise my discretion in favour of the applicant, where
the underlying dispute has not been referred for conciliation timeously to the
structures provided for in the LRA. This discretion is exercised in terms of
section 157(4)(a) of the LRA, which states that the Court can refuse to exercise its
discretion in favour of an applicant if it is not satisfied that the underlying dispute
has been properly conciliated.
[25] As the respondent is no longer seeking an order as to costs, I need dwell on this
matter any further.
[26] In the event, I grant the following order: The application is dismissed. No order
is made as to costs.
_____________________
BASSON, J
Appearing for the Applicant: Ms Mandy Taylor
Cheadle, Thompson and Hayson
Appearing for the Respondent: Mr H.C. Nieuwout
Jannie de Villiers and Sons Attorneys
25 March 1999
Ex tempore